Allahabad High Court
Bindra Prasad vs State Of U.P. Thru. Prin. Secy. ... on 17 August, 2023
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:54564
Court No. - 18
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6577 of 2023
Applicant :- Bindra Prasad
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And 3 Others
Counsel for Applicant :- Uma Shanker,Subrat Gupta
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Lavania,J.
Supplementary affidavit filed in the Court today is taken on record.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
The present second bail application has been filed on behalf of the applicant with a prayer to enlarge him on bail in Case Crime No. 202 of 2019, under Section 376-D I.P.C., Section 3/4 POCSO Act and Section 3(2)(V) of S.C./S.T. Act, Police Station- Harchandpur, District- Raebareli.
This is second bail application. The first bail application i.e.CRIMINAL MISC. BAIL APPLICATION No. 12360 of 2019 was rejected for want of prosecution vide order dated 22.07.2022.
While pressing the present bail application, Sri Pannalal Gupta, Advocate holding brief of Sri Subrat Gupta, learned counsel appearing for the applicant says that as per the story of prosecution, three persons committed the crime and taking note of the same, the applicant and others were implicated under Section 376-D I.P.C., Section 3/4 POCSO Act and Section 3(2)(V) of S.C./S.T. Act. However, a perusal of medical opinion falsifies the case of prosecution, as per which, no injury was found on the body of victim, though, if the crime was committed as indicated in FIR, the injury was must on the body of victim.
It is further stated that the crime, as per the story of prosecution, was committed on 14.06.2019 and medical examination was carried out by the concerned doctor on 16.06.2019, however, no spermatozoa and gonococci was found, as is evident from the medical opinion dated 16.06.2019 as also the supplementary medical report dated 16.06.2019.
He further submitted that before the trial Court, the main witnesses of fact namely victim and her mother have already been examined. As such, there is no possibility of influencing the witnesses of fact by the applicant if he is released on bail. He based upon the statements of these witnesses particularly the statement of victim also stated that there are several contradictions in statement of victim, which also creates doubt on the story of prosecution, as set up.
It is further stated that the applicant is languishing in jail since 16.06.2019 and several formal witnesses are yet to be examined and in this aspect of the case, the conclusion of trial in near future is extremely bleak, as such, taking note of the period of incarceration as also other aspects including the statement of victim and medical opinion, which does not supports the story of prosecution at all, the applicant is entitled to be released on bail.
In regard to period of incarceration, learned counsel for the applicant has placed reliance on the judgment passed by the Hon'ble Apex Court in the case of Union of India Vs. K.A. Najeeb reported in AIR 2021 SCC 712 and Paras Ram Vishnoi. Vs. The Director General Bureau of Investigation, passed in Criminal Appeal No.693 of 2021 (Arising out of SLP (Crl.) 3610 of 2020), as per which, bail can be granted to those accused persons on the ground that there is no possibility to conclude the trial in near future and there is a long incarceration period of that accused. Relevant para-16 of the case of K.A. Najeeb (supra) is quoted below:-
"This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."
In the case of Paras Ram Vishnoi (supra), the Hon'ble Apex Court has observed regarding point of incarceration period and delay in trial. The relevant part of the said judgment is quoted below:-
"On consideration of the matter, we are of the view that pending the trial we cannot keep a person in custody for an indefinite period of time and taking into consideration the period of custody and that the other accused are yet to lead defence evidence while the appellant has already stated he does not propose to lead any evidence, we are inclined to grant bail to the appellant on terms and conditions to the satisfaction of the trial court."
In regard to age of victim, it is stated that as per medical opinion, at relevant time, the victim was about 17 years old and as per case of prosecution, the victim was 16 years old and thus, the age of the victim is subject to the evidence adduced before the Trial Court, however, at this stage of bail benefit of judgment regarding assessment of age is required to be extended in favour of applicant.
It is also submitted that there is no apprehension that after being released on bail, the applicant may flee from the course of law or may otherwise misuse the liberty of bail and he will cooperate in trial. The prayer is to grant bail to the applicant.
Learned A.G.A. opposed the prayer for grant of bail but he could not dispute the above contentions made by the learned counsel for the accused-applicant particularly based upon the statements of victim and her mother, medical opinion and period of incarceration as also settled proposition of law in this regard.
Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties and keeping in mind the period of incarceration in particular and the fact that statements of victim and her mother have already been recorded and being so there is no possibility of influencing the main witnesses of fact as also medical opinion and without expressing any opinion on the merits of the case, I find it to be a fit case for granting bail.
Let the applicant-Bindra Prasad be released on bail in aforesaid Case Crime, on his furnishing personal bond to the satisfaction of the court concerned forthwith. Applicant is also directed to furnish two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.
Observations made hereinabove by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression on the merits of the case.
Order Date :- 17.8.2023
Arun/-
